Indictments unsealed Tuesday in the Northern District of Alabama focused a new spotlight on some of the inherent absurdities in U.S. child pornography and record-keeping laws.
In a nutshell, the indictments charge Marc Evan Greenberg, 42, Jeffrey Robert Libman, 39, and Webe Web Corporation—all of Ft. Lauderdale, Fla.—and teen glamour photographer Jeff Pierson, 43, of Brookwood, Ala., with conspiring to produce and distribute child pornography via the Web. On the surface, the charges seem straightforward: Greenberg, Libman, and their company contracted with Pierson and others to obtain images of fully clothed girls younger than 18 for a collection of “child-modeling” websites that solicited subscriptions. Pierson, an auto racing photographer of some repute, was able to supply the images because he also operated a business that supplied portfolios to aspiring child models. The web of websites operated by Webe Web and the mechanics of subscription and interaction between members—at least as reported by Federal Bureau of Investigation and U.S. Postal Inspection Service investigators—made the operation sound suspiciously like a child-porn front.
“The indictment alleges that these defendants conspired to produce pornographic images of under-aged girls posing in lascivious positions for profit, under the pretense of offering professional modeling services,” Assistant Attorney General Alice S. Fisher said in a statement.
However, according to CNET’s Declan McCullagh, prosecutors admit there is no evidence to suggest Pierson ever photographed a naked child. Instead, the government alleges the fully clothed images are “illegally provocative” and therefore constitute child porn.
“The images charged are not legitimate child modeling, but rather lascivious [emphasis added] poses one would expect to see in an adult magazine. Here lewd has met lucrative, and exploitation of a child’s innocence equals profits,” according to U.S. Attorney Alice H. Martin.
The word “lascivious” is particularly important. It’s the one used in applicable legislation and existing case law to describe images of children that fall along an ill-defined border between innocence and depravity. “Lascivious” also is used in 2257 legislation relevant to the adult entertainment industry. First Amendment advocates say lascivious is a singularly vague word, and its adjudication presents a number of vexing legal issues, especially where photographs of teens are concerned.
“Prosecuting cases on this borderline presents difficult First Amendment problems,” Amy Adler, a New York University law professor who has written about pornography, culture, and the law, told McCullagh. “The sexy teenager is sort of a mainstream trope. It’s very different from babies being molested, and child pornography law doesn’t make a distinction.”
First Amendment attorney Clyde DeWitt said a case like the one opened by Tuesday’s indictments should set off alarm bells in the advertising, entertainment, and music industries. It’s common practice to use what could be construed as “lasciviously” posed young people in commercial advertising, movies, and music videos, he noted, and that could put mainstream producers at risk of prosecution.
“Effective [with passage of the Adam Walsh Law in] July, ‘lascivious exhibition of the genitals’ also triggers [18 U.S.C. §] 2257 [documentation requirements],” DeWitt said, even if the model is of age and fully clothed. “Therefore, lots of advertising now requires this documentation, and there are lots and lots and lots of people who don’t have a clue about 2257 and don’t realize they’re subject to it. [In effect,] there are all sorts of felons running around now, and they don’t even know [they’re breaking the law].”
Of greater concern for DeWitt, though, is that any definition of the word “lascivious” is necessarily subjective. Some courts have held that any image that exposes a child’s genitalia—clothed or nude—is lascivious; others have ruled lascivious images are ones that seem designed to elicit a sexual response in viewers. One court even noted “the motive of the photographer in taking pictures may be a factor, since children are not necessarily mature enough to project sexuality consciously, and thus, sexuality of depictions often is imposed upon them by attitude of viewer or photographer” (United States v. Arvin, 1990).
“If you find out what lascivious means, please call me and let me know, because I’ve been representing adult video businesses for 25 years and I don’t know,” DeWitt said.
Association of Sites Advocating Child Protection Executive Director Joan Irvine also seemed somewhat perplexed by the implications of the Alabama case.
“The hotline reports ASACP investigates tend to involve sites that are a lot more hardcore and blatantly illegal than the material in question here,” she said. “We do get reports of sites selling child modeling and art photography, and some are pretty borderline. For instance, such sites might not be violating the law—but we wouldn’t accept them as ASACP members, either.
“More often, though, [child pornographers] specialize in really heinous sexual abuse of young children, even toddlers and infants. There’s no question about this material; no gray area. We’ve heard this repeatedly confirmed by the National Center for Missing and Exploited Children and by law enforcement.
“With child pornography and child predators getting attention in the media, the [U.S. Department of Justice] is under pressure to take action and show progress,” Irvine continued. “These child modeling and art sites operate openly, so they present a more appealing target in the short term. Law enforcement can actually get to them, just as most child-porn busts you read about involve end-users rather than producers.”
Irvine is concerned that expanding the scope of “child pornography” enforcement to include borderline sites in an effort to impress a disenchanted electorate might put undue additional strain on a system already taxed to its limits.
“ASACP bases its reporting protocols on current law, and if [child pornography] is redefined to include this kind of material, we will work within that definition,” she said. “But we do think the fight against [child pornography] should stay focused on stopping the most abusive material at its source.”
